United States v. Gary Tidd

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7000
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GARY LEE TIDD,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:10-cr-00043-F-1; 7:12-cv-00106-F)
Submitted: August 26, 2014 Decided: August 29, 2014
Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Gary Lee Tidd, Appellant Pro Se. Jennifer P. May-Parker,
Assistant United States Attorney, Shailika K. Shah, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gary Lee Tidd appeals the district court’s order
dismissing his 28 U.S.C. § 2255 (2012) motion. We granted a
certificate of appealability on the issue of whether Tidd raised
a viable claim of ineffective assistance of counsel based on
counsel’s alleged failure to comply with Tidd’s direction and
note an appeal. The Government concedes that Tidd’s allegations
stated a potentially meritorious claim of ineffective assistance
and that the district court’s dismissal of that claim was
premature in the absence of an evidentiary hearing. Roe v.
Flores-Ortega, 528 U.S. 470, 477 (2000); United States v.
Oliver, 865 F.2d 600, 601 (4th Cir. 1989); see also United
States v. Poindexter, 492 F.3d 263, 269 (4th Cir. 2007); United
States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993).
Accordingly, we vacate the district court’s order
dismissing Tidd’s § 2255 motion and remand for an evidentiary
hearing on whether counsel neglected Tidd’s direction to appeal.
We dispense with oral argument because the facts and legal
conclusions are adequately presented in the materials before
this court and argument would not aid in the decisional process.
VACATED AND REMANDED
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